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What does the $16 million deceitful marketing and malpractice verdict against Brookwood mean for maternity care in the state?

Photo by Sam Prickett.

If corporations are people — as the U.S. Supreme Court upheld (to some extent) in the 2010 landmark case of Citizens United — can they be punished? And if so, then how?

That was the rhetorical question posited by Rip Andrews, one of the attorneys representing Caroline and J.T. Malatesta, during their two-week trial. On August 6, after nearly 10 hours of deliberation, a Jefferson County Circuit Court jury awarded the couple $16 million in damages as a result of a lawsuit they filed against Brookwood Women’s Health that alleged the hospital produced a “reckless” marketing campaign targeting women seeking natural childbirths without having policies in place to deliver on what was advertised.

“There is a basic underlying concept when it comes to punishment of a corporation,” Andrews told the jury. “This is the only remedy available to [Caroline Malatesta] to hold a corporation like Brookwood Hospital responsible for their actions. The idea is very simply this: we want for corporations to know that reckless behavior will always be more expensive than safe behavior. Don’t we want that?”

The jury assessed $10 million in compensatory damages, $5 million in punitive damages and an additional $1 million for J.T. Malatesta on his loss of consortium claim.

Whereas fraudulently advertising the services that were available to patients was one of the main pillars of the lawsuit, the “reckless misrepresentation” came to a head in the early morning hours of March 12, 2012, after a “power struggle” during the final moments of her labor left Caroline Malatesta with a chronic nerve injury. The plaintiff argued that the nursing staff forced her out of her desired birthing position and held the baby inside her while waiting for the doctor to arrive. Expert witnesses testified that was likely the cause of the condition Pudendal Neuralgia, causing her incurable nerve pain and leaving her unable to have more children.

None of the doctors or nurses gave depositions or testimonies to the contrary because no one, other than the Malatestas, said they could recall the events that took place that morning.

Andrews said he is only aware of one other case in the United States in which a hospital has been sued for participating in fraudulent marketing. Several days after the verdict, Caroline Malatesta explained how she viewed this trial as being about more than finding justice for herself. While it was an important healing process, she said, the reactions she’s received from women across the country has bolstered the belief that she was standing up for a woman’s right to choose how to deliver a baby.

Speaking over the phone on Monday, Malatesta said Friday night’s verdict could impact other mothers who may have encountered similar situations — “bait-and-switch births” as she described it — in hospitals around the country. With any luck, she said, the verdict has set a tone for how hospitals will market their services to expectant mothers in the future, “and prevent anyone else from possibly being duped.”

While the verdict may have bandaged some of her emotional wounds, “Being in litigation is hard. It’s just hard,” Malatesta sighed. She recounted the feeling of having to discuss very intimate details about herself and her body to a room full of strangers. “Now I can focus more on the physical wounds and just spending time with my family, just doing the best we can do with what we got. I’m tired. Obviously it was the outcome I wanted. I, along with other women who may have felt duped or mistreated, now feel validated. I’ve had a lot of women tell me this — our verdict is the validation they never got.”

Malatesta spoke highly of her Brookwood obstetrician, Dr. William Huggins, who helped her develop her natural birth plan. He was not at the hospital the night of her birth nor was he contacted by Brookwood about the personalized birth plan — which is one of the features Brookwood touted in their marketing.

The night of baby Jack’s birth — Malatesta’s fourth; she had her previous three children at St. Vincent’s but switched after seeing Brookwood’s marketing campaign — she called ahead to the hospital to inform them she had gone into labor, but Brookwood made no effort implement the plan she had in place. Huggins and other Brookwood staff testified there was no procedure in place to make sure the staff on call was made aware of the individual plans.

David Marsh, one of the attorneys representing the Malatestas, said that the lack of a procedure for ensuring a patient’s birth plan was honored — even without her OB present — amounted to a “shoddy lottery.”

John Morgan, the obstetrician who delivered Malatesta’s baby, was asked if Brookwood had a system that notified on-call doctors as to whether or not a patient had requested a natural birth. “No, I don’t think it matters to them,” he responded.

Malatesta also said that, despite leaving the hospital with a serious injury, there are plenty of “great people” who work at Brookwood. But that did not stop her from speaking out about the “systemic problems” she encountered there.

Photo by Sam Prickett.

“Ask your friends”

On the steep descent from Shades Mountain toward Brookwood, there is a large billboard that juts out from the kudzu. It reads, “Deciding where to have your baby? Ask your friends.” Next to the red Brookwood logo stands a 15-foot-tall blonde woman with a bashful look on her face, staring down at the cars as they ride their brakes down the mountain.

It’s part of Brookwood’s marketing campaign aimed at expectant mothers. An April 2012 video version used a similar strategy, which seemed to appeal to a communal sense of new motherhood and featured women in various stages of pregnancy talking about how many people they know who had had a child a Brookwood. “I’m thinking about going natural,” a brunette woman said. “They even do water births. How cool is that?” said another.

Brookwood uses the Marketing and Advertising Review process (MARS) to prevent inaccuracies in their advertisements. However, the Malatesta case revealed several instances where Brookwood did not submit information to MARS before it presented ads to the public.

Defense Attorney Tom Kendrick, who represented Brookwood, told jurors this was acceptable because only claims of superiority have to be subject to the review process. “If you claim superiority then you have to substantiate the claim,” Kendrick said. “You won’t find one word where Brookwood says, ‘We claim to be the best hospital in the city of Birmingham for natural births.’ It sounds bad to say Brookwood is not substantiating their own claims and I can understand why but that’s trying to build up the very thing you can’t decide this case on and that’s passion… It’s just a play to get you angry about something that is misleading.”

Malatesta’s attorneys, however disagreed with the limitations Kendrick argued for. “The MARS review process is designed to help avoid false or misleading advertisements, protect against fraud and abuse that may prompt patient referrals and avoid unlawful patient inducement violations. All materials you use to promote your hospital programs and services must be sent through MARS review,” is written into the official MARS standards which were submitted as evidence in the case.

Some of the advertising materials subject to review include billboards, brochures, print advertisements, TV, websites and internet marketing materials like blogs, websites and social media.

In her deposition, Kelly Taylor, a Brookwood marketing executive confirmed these materials are subject to MARS review. “A big part of what we do is obtain approval before we publish anything by [Brookwood’s parent company] Tenet through MARS,” Taylor said.

Lynn Jeter, the OB nurse educator at Brookwood since 2004, testified, “I think everything on our website matches the care that we give.”

Some of the discrepancies outlined in the trial were advertising materials that indicated services like water births being were offered on the Brookwood website years after the hospital officially banned those services in 2013. As late as July 15, 2015, Brookwood’s website read, “We have a variety of birthing equipment, including water birthing tubs.” While this occurred after Malatesta’s birth, she said it is indicative of the lack of oversight that went into the hospital’s marketing campaign.

“The ads were what hit me at the right time when I was receptive to it,” Malatesta said. After having three children at St. Vincent’s, medicated and in a recumbent position — meaning on her back — Malatesta decided she wanted to have a natural water birth. After seeing the advertisements illustrating that, she decided to go to Brookwood. Malatesta explained that she switched partly because was that she wanted mobility, and also because the idea of wireless monitoring, which was part of the marketing, appealed to her.

“There have been testimonies that stated, when Caroline walked into the hospital, she was under a uniform birth plan, a set of standing orders that required her to be in the bed and required continuous monitoring, without wireless monitors,” Andrews told the jury.

Malatesta testified that there would have been “no point” of going there had she known about the standing orders that were contrary to the services being offered in the ads.

Photo by Sam Prickett.

The morning of

Having planned for a natural water birth with wireless monitoring, Malatesta was surprised when the nursing staff asked her to get into bed and lay on her back. She was hooked up to a monitor. Brookwood officials said this is the standard procedure for all women, medicated or not.

The doctors and nurses on call that evening testified that there must be at least 20 minutes of fetal heartbeat monitoring before a patient is able to be mobile. Jeter testified that the policies (or standing orders) are written broadly to allow flexibility of care. “We have a vaginal delivery policy and that policy covers a delivery whether you have medicine or not. [The standing orders] are a place to start from. It starts with just the basic general assessment,” Jeter said.

Malatesta said that no effort was made to allow her to have the wireless monitoring she had requested. Furthermore, Malatesta said that the room she was in could not accommodate a birthing tub like she had planned for.

Marsh pressed Jeter on the specifics of Brookwood’s standing orders and asked why a different draft was produced after Malatesta’s birth that included specific policies for natural birth. “You would agree that features in the unmedicated standing orders are different from the features that in the standing order that was in effect on the night that she came in?” Marsh asked.

“Her care would have been exactly the same had we used those unmedicated delivery standing orders because we have to start from somewhere and that would include the assessment,” Jeter responded. When asked again if there were differences, Jeter answered, “Yes.”

Malatesta testified that when she was ordered to rest on her back while being monitored, the discrepancy between what nurses wanted and what she wanted lead to 10 minutes of “back-and-forth” between them. She repeatedly attempted to get on her hands and knees instead of on her back, but they were determined she would not, she testified.

“Being on my back really, really hurt,” Malatesta testified. “I was just begging the nurse for me to be able to get off my back. To me, when that contraction came on a few minutes later, I instinctively, not even consciously, jumped to my hands and knees and said ‘I can’t do this on my back.’ It was like touching a hot stove. I wasn’t trying to make my nurses’ job harder. At that moment I could feel the baby coming out.

Photo courtesy of Caroline Malatesta.

“The nurse came and grabbed my left hand. I was trying to pull back against it and breathe out the baby like I had learned. She pulled me and I sort of fell down on my shoulders because I couldn’t support myself with just one hand. She rolled me over and I remember just grabbing the edge of the bed and a few seconds later another contraction was coming on. I rolled over and put my foot on the first thing I could to get leverage to roll back over on my hands and knees. One nurse is holding my left leg and holding the baby’s head in,” Malatesta said tearfully. “They told me not to push.”

The official record shows that at 2:55 a.m. Malatesta yelled that her baby was coming. By her account the struggle with the the nursing staff went on for about six minutes, during which time records indicate that the fetal monitor stopped picking up a heartbeat. Malatesta argued the struggle with the nurses had caused the monitor to detach or that it had been removed while she was being repositioned. Both the defense and plaintiff testified at no point was the child in danger or was there a sense of emergency.

According to the official record, the doctor entered the room at 3:01 a.m., and at that time, Malatesta said, “I remember the moment the nurse stepped to the side. It was the moment of relief when she let go. At that point I remember the head popped out immediately and the doctor began doing more what I was used to for controlling the head.”

The doctor’s recollection of the timing of events differed from Malatesta’s and the official record. Morgan claimed in his deposition that he was in the room for about six minutes before the birth -—“long enough for us to talk for a few minutes,” he said. He denied this was a “botched delivery.”

Morgan testified that he has done “thousands” of deliveries with the nurses who were in the room that night. In January 2015 Morgan could not recall any specifics of the delivery when he gave his deposition, other than when he entered the room, “nobody was fussing… I can’t remember, you know, the minute details. All I am picturing is — because this happens, where people come in and deliver quickly — usually it is nurses running down to help. Nurses run down to help and I can remember making eye contact with [Malatesta].”

At the trial, Morgan recalled walking into the room and Malatesta saying, “I should’ve come to the hospital when you told me to.” (Malatesta labored at home for several hours while her contractions were still more than five minutes apart.) He also said he has delivered babies while mothers were on their hands and knees and that, “If you’re comfortable, you’re going to be better off.”

During the trial, Marsh pointed out how much more detailed Morgan’s 2016 recollection was than his 2015 deposition. Morgan said that was because he had “had time to think about it” but he still does not know what exactly happened before he walked in the room to deliver the baby. Morgan said he recalled some specifics “after talking to the attorneys.”

Photo by Terry McCombs/Flickr Commons.

Birth or extraction?

Malatesta is not alone in her complaints about the care she received at Brookwood. As Weld has reported, other women have had issues with delivering their children at the hospital. Five other women went on record about their negative experiences at Brookwood before the trial.

At that time, a Brookwood representative declined to comment on these situations, saying that “HIPAA regulations and other statutory requirements prevent us from discussing confidential patient information.”

Before the trial, Joy Hutzler recalled seeing the commercials that advertised natural childbirth before having her C-section at Brookwood. It was her first child and she described it as “an ugly situation.” Unlike Malatesta, Hutzler did not go in wanting a natural childbirth. “What I wanted was the opportunity to see how things would go before an intervention was necessary,” Hutzler said. “That didn’t happen. I got bullied into having a C-section.”

Delivering a child is not a “9-to-5 thing,” Hutzler said. Her experience “felt more like a medical procedure in which something was being extracted, as opposed to the physiological process process I thought I would be a part of,” Hutzler said. She switched hospitals when she became pregnant with her second child.

Cristen Pascucci, vice president of the national advocacy organization Improving Birth, attended the trial and said she hopes the verdict can help improve maternity care in Alabama and elsewhere. “It just reinforced what advocates have known for years, that there is a serious problem with maternity care in this country,” Pascucci said. “It’s great to see a court acknowledge these things and I hope it makes hospitals think twice before they market services they can’t deliver to the public.”

Pascucci believes the jury sent a strong message with their verdict. “You can’t lie to women and abuse them and get away with it forever,” Pascucci said. “First, this case was about bait-and-switch marketing, which is a national problem when it comes to doctors and hospitals making promises to pregnant women that they are not willing or able to deliver on. It’s also about the use of force on a laboring woman — something that happens every day in this country. With this case, Caroline has helped break the silence around two big dirty secrets in maternity care.”

Born in Alabama

Alabama consistently ranks low in terms of childbirth and infant healthcare — Wallethub this week ranked Alabama the third worst state in which to have a baby based on criteria such as access to maternity care and infant well-being — and is one of 23 states that outlaws midwives from delivering babies (Certified Nurse Midwives are often employed by hospitals to assist during childbirth, are not allowed to legally deliver a child without supervision).

Jennifer Crook, a midwife who lives in Alabama but practices in Tennessee where she is legally certified, also attended the trial because of what she described as “the implications it has on maternity care in this state.” Crook said the longer she has worked on these issues of maternity care in Alabama, “The bigger I’ve come to realize the problem is.” She described the current state of maternal care in Alabama as a “crisis.”

“Cuba has better outcomes than we do for all intents and purposes,” she said. “You could consider Alabama as one of the more dangerous places to give birth in the developed world. The more I do this work I realize women are having to drive great distances just to access any care. Over half of our counties don’t have hospitals that offer maternity care services,” Crook explained, adding that a majority of those counties are in the Black Belt region.

Alabama women who come to hospitals seeking natural childbirth have no other options since midwifery is illegal in the state. Crook said it’s frustrating that hospitals treat it as though there is a choice between coming to the hospital or delivering at home. “My first thought is what other choice do women in Alabama have to give birth in a legally supported way? There is no choice,” Crook said.

Referring to the lack of options as the “McDonaldification” of childbirth, Crook said that “Childbirth is big business. Hospitals are constantly competing for a share of the market. I’m not sure that’s the way women will receive the best care when it is thought of as a money maker.”

Malatesta’s case, Crook said, “has shined a light down a deep, dark well. This isn’t a problem just here in Alabama, it’s everywhere.”

Photo courtesy of Caroline Malatesta.

In closing

Before the trial concluded, Kendrick and the Brookwood defense argued that Malatesta was “out of control” and that the “evidence is very much controverted as to what happened in that room that night.

“It was a conflict of the desires of a mother and not knowing what was going on with the baby,” Kendrick said in closing arguments. “When a patient is on labor and delivery and the nurses are taking care of the mother, they are also taking care of the baby. And you can’t see what’s going on with the baby except for one way and that is to look into the womb with that fetal monitoring that has been so important over the years to assess fetal well-being.

“That’s what was happening that night. That’s where the conflict came in. That’s why Mrs. Malatesta was asked onto her back because that fetal heart rate was lost,” Kendrick said, adding that it would be sending the wrong message if Brookwood had to change its policies because of what happened with Malatesta.

Brookwood representatives did not respond to questions regarding the verdict or whether the hospital plans to appeal. The hospital has 30 days to ask Jefferson County Circuit Judge Joseph Boohaker, who presided over the case, to review the verdict. If the verdict stands that test, the defendants will have another 42 days to appeal to the Alabama Supreme Court.

When asked about whether or not he anticipates an appeal from Brookwood, Andrews responded, “What I can tell you is this: there has been a confidential resolution of the case. That’s all I can say.”

Despite the favorable verdict, Malatesta’s trials are not over. The injury she suffered will require in-home medical care for the rest of her life. But in the aftermath, she said she is not just thinking of herself.

“I want to thank the jury from the bottom my heart and I hope they know what a wonderful thing they’ve done for the women of Alabama,” Malatesta said. I want them to know this was never just about me. I pursued this case because of all the other women, all the women who have contacted me over the last three years to say, ‘I was betrayed by this advertising, too, and thank you for standing up for us.’”

Update 8/10/16 12:37 p.m.: Below is a response provided by a representative of Brookwood Baptist Health.

Brookwood Medical Center is committed to delivering high-quality, compassionate care to all of our patients. We are very disappointed in the jury’s decision, as many details that have been reported as true were highly contested and in dispute. Our nurses are trained in evidence-based best practices, and we are proud of the care they deliver to thousands of patients every year. Nothing is more important to us than providing care that is safe and focused on the wellbeing of our mothers and babies. We strive for excellence in patient satisfaction and it is unfortunate we were not able to meet Ms. Malatesta’s expectations in the short time she was at our hospital.

Brookwood Baptist Medical Center delivers over 4,000 babies annually. On average, 12-14% of these are unmedicated deliveries, and our staff is very experienced in supporting families that choose an unmedicated delivery. Brookwood Baptist Medical Center does not penalize or reprimand nurses for participating in precipitous deliveries, as has been widely commented in reaction to media coverage. In fact, precipitous deliveries accounted for 39 babies being delivered by nurses at Brookwood in 2015. Nurses often coach patients not to push to avoid explosive delivery that increases the risk of lacerations. They support the perineum, and a baby will often retract between contractions. When a baby is ready to deliver, there is no reason, or ability, to delay.